For many clients facing criminal charges for the first time, a primary concern is the implications and consequences of having a criminal record. Until recently, the only way to avoid a criminal record in Victoria when accepting responsibility for committing a crime was through a Criminal Justice Diversion Program ('Diversion'). However, the enactment of the Spent Convictions Act 2021 (Vic) now creates further opportunities for people pleading guilty to criminal offending to avoid having it form part of their criminal record.
Criminal Records
Having a criminal record can affect people in two main ways. Firstly, it can be accessed by police when investigating future suspected criminal activity and replied upon in subsequent criminal proceedings against you. Secondly, and of most common concern, is that your criminal record may appear on official police records requested by you, such as a National Police Check.
A National Police Check that reveals prior criminal history and convictions may have implications for housing, access to services, and employment and job prospects. It may prevent you from entering certain professions such as public office, police and defence, as well as registration professions such as those of doctors, social workers, psychiatrists, nurses, dentists and optometrists. It also may have implications for traveling overseas, as some embassies may require information on prior criminal history before granting visas, whilst others have laws preventing people with convictions or findings of guilt from entering their country.
Diversion
Diversion, as the name suggests, is aimed at diverting an accused away from the criminal justice system, specifically first-time offenders, or people with little or dated prior criminal history. To be eligible for Diversion, the Prosecution must first support the application for Diversion. Next, a Magistrate must grant the application, with the accused accepting responsibility for their role in the offending. The Prosecution and the Magistrate will take into consideration any prior criminal history and the circumstances and seriousness of the offending, as well as the victims' views, should they provide them.
If the Magistrate agrees that an accused is suitable for diversion, they will be placed on a Diversion Plan and required to follow and complete certain conditions within the duration of the Diversion Plan, such as:
- Writing a letter of apology to the victim or of gratitude to the Prosecution.
- Engaging in counselling relevant to the offending.
- Undertaking an education program or community work; or
- Making a donation to a charity.
The primary benefit of Diversion is that successful completion of the Diversion Plan allows an accused to avoid a criminal record and engage in activities aimed to rehabilitate and reduce the likelihood of reoffending. Notwithstanding, there are some matters for which diversion is not appropriate or available.
Spent Convictions
Previously, where Diversion was not appropriate or available, this was the end of the line for clients wishing to avoid having a criminal record recorded. However, with the enactment of the Spent Convictions Act 2021 (Vic) ('the Act'), certain findings of guilt may now become spent. A spent conviction is a record of criminal conviction, defined as any finding of guilt in a Court or infringement convictions, that under the Act no longer forms part of a person's criminal record and is not required to be disclosed, except in limited circumstances.
The Spent Convictions Scheme aims to reduce unfair barriers, discrimination and disadvantage faced by Victorians who have committed criminal offences. By allowing for certain convictions to be spent, the Act aims to ease the burdens faced by Victorians with historical or minor criminal convictions. A product of significant and sustained advocacy, the Spent Conviction Scheme also seeks to address the disproportionate and discriminatory impact such convictions have upon First Nations People, who in many instances already face disadvantages by virtue of over incarceration, poverty, institutionalisation, and racism.
How does the Scheme Work?
There are three ways in which a conviction may be spent:
- immediately, from the day the conviction is imposed, or once certain conditions are met;
- automatically, upon the expiration of a conviction period; or
- spent conviction order, where an application is made to the Magistrates' Court for a conviction to be spent;
The following set out each option, their limitations and their exceptions:1
Immediately Spent Convictions
From 1 December 2021, certain findings of guilt and infringements were able to be immediately spent where, upon pleading guilty, an accused is found guilty of an offence and:
- the Magistrate exercises discretion not to record a conviction; or
- the conviction is qualified by a finding of guilt by reason of mental impairment or unfitness to be tried under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997; or
- the conviction is for an offence committed when the person was under 15 years of age (including 'serious convictions'); or
- the person received a fine in the Children's Court; or
- the conviction is an infringement conviction (such as drink or drug driving and speeding offences in excess of 25km/h of the speed limit).2
However, exceptions apply where a penalty is imposed subject to the fulfilment of certain conditions, as is the case with Good Behaviour Bonds.3 Good Behaviour Bonds ('GBB'), also referred to as an Adjourned Undertakings, arise where an accused person pleads guilty to a criminal offence and makes a promise to the Court to be of good behaviour for a fixed period of time. A GBB is most commonly for a period of 12 months but can be up to 60. It must include the condition that the accused be of good behaviour for the duration of the order, but may also include any order conditions the Court deems relevant, such as:
- To complete counselling, or offence-related programs;
- To engage or continue engagement with mental health services and professionals; or
- To make a financial donation to the Court Fund.
Where a Magistrate sentences an accused to a GBB without conviction, the Act operates such that the finding of guilt will be spent once the conditions of the GBB have been complied with, but may be disclosable during the period of the GBB.4 This sees GBB operating similarly to a Diversion where, upon its successful completion, an automatically spent GBB would no longer form part of a person's criminal record, be disclosable or show up on a National Police Check, unless an exception applied.
Automatically Spent Convictions
The second category of spent convictions refers to those that are spent automatically. Often referred to as the 'crime-free period', these are convictions that, provided the accused was not convicted of a 'serious conviction' and does not reoffend within the specified period, will be automatically spent once the conviction period expires. The crime-free or conviction period expirations are:5
- 5 years if the person was a child (15-18 years old) or eligible young offender (under 21 years old) at the time of sentence; or
- 10 years if the person was an adult at the time of sentence.
The time period for a spent conviction commences on the day the conviction is recorded,6 but will restart if the person reoffends and receives another conviction within the crime-free period. Though low-level convictions of the following nature will not restart the crime-free period:
- fines less than 10 penalty units or outside Victoria,
- a penalty under a compensation or restitution order,
- a conviction without penalty or
- a conviction where no conviction is recorded by the court.7
Convictions for 'serious convictions' are not capable of being automatically spent, that is, crimes consisting of:
- a 'sexual offence' (a broad meaning is given to 'sexual offence' but includes rape, sexual assault, sexual offences against children, child pornography and other like offences);
- a 'serious violence offence' (such as murder, manslaughter, some serious injury offences and kidnapping);
- or any other type of offence if 30 months' imprisonment (or detention in a youth justice facility) or longer was imposed.
For 'serious convictions' to be spent, a spent conviction order must be applied for at the Magistrates' Court.
Spent Conviction Order
Coming into effect from 1 July 2022, persons convicted of crimes
deemed as 'serious convictions' have been afforded the
opportunity to apply to the Magistrates' Court for a Spent
Conviction Order. Where a Spent Conviction Order is made by a
Magistrate, the conviction will no longer form part of the
person's criminal record and will no longer be disclosable
unless an exception applies.
To apply, the person must have been sentenced for a 'serious
conviction' and have completed their crime-free period at the
time of applying. That is:
- the person was a child or young offender aged 15-20 at the time they were sentenced, and they completed a crime-free period of five years; or
- the person was 21 years or older when they were sentenced, and they completed the relevant crime-free period of 10 years (excluding convictions which may 'never become spent').
In making an application, the Chief Commissioner of Police may make submissions to the Court and the applicant is given an opportunity to respond to adverse materials. Ultimately, the decision to make a Spent Conviction Order by a Magistrate is a balancing exercise, with regard given to:
- the offence, its nature, circumstances and seriousness,
- the impact upon victims, and
- attributes personal to the applicant, including their circumstances, age and maturity at the time of the offence, demonstrated rehabilitation and any risk to public safety.
Where the applicant is a First Nations Person, the Magistrate must also have regard to factors specific to Aboriginal and Torres Strait Islander persons, namely the incarceration of Aboriginal and Torres Strait Islander persons and factors that impact Aboriginal and Torres Strait Islander persons' disclosure of criminal records. Should an application be refused, the applicant must produce new and supporting information to apply again within 2 years of an otherwise valid application being refused.
Convictions Never to Become Spent
Despite the opportunities offered by the Act to avoid criminal records, there are convictions which may never become spent under the Act. Where the person was:
- aged 21 years or older at the time of sentence; and
- convicted of serious violent offences or sexual offences; and
- a term of imprisonment was imposed;
These convictions may never become spent. Equally, where an adult is sentenced to 5 or more years imprisonment, this conviction can never become spent.
Notably, however, and in keeping with commonly applied legal principles regarding youthful offenders' moral culpability and capacity for rehabilitation, these restrictions do not apply for person who were under the age of 21 at the time of sentence. As such, persons aged under 21 at the time of sentence can apply for any convictions to be spent under the Spent Convictions Order category.
Disclosure of Spent Convictions
Where a conviction is spent, be it immediately, automatically or by Court order, the conviction no longer forms part of the person's criminal history. In furtherance of this protection, the Act provides that:
- spent convictions are not required to be disclosed,
- that a person must not request another to disclose their spent convictions, and
- makes it an offence to unlawfully disclose information about spent conviction without lawful authority or written consent.
Notwithstanding, in recognition of risk and public safety considerations, there are exceptions to these disclosure rules. Firstly, law enforcement agencies (including Victoria and interstate and Federal police, Commissioner of Corrections and Director of Fines Victoria) as well as Courts and tribunals may disclose convictions as part of disclosures of criminal records. Secondly, these agencies may also disclose a spent conviction or information relating to a spent conviction to a person or body, where the person or body is receiving the information for a specified purpose. Such specified purposes are set out in s.22 of the Act and Table 1, but broadly include:
- licensing, such as for firearms or trust professionals,
- checks for employment such as working with children checks or disability workers,
- registration and accreditation professions, and
- employment for government roles such as Victoria Police, Court Services or Corrections.
The rationale for these exemptions is to allow bodies, agencies, and law enforcement to still make fully informed risk assessments of applicants, though the Equal Opportunity Act 2010 (Vic) does provide some safeguards by making it unlawful to discriminate against a person on the basis of a spent conviction.
Conclusion
Criminal records pose immense barriers to employment, housing, and accessing services for many people. The disclosure of criminal records causes significant disadvantage, discrimination, and harm to those who have them, and disproportionally impacts First Nations People. Prior to the Spent Convictions Scheme, the only avenue for avoiding a criminal record was via Diversion. However, the enactment of the Spent Convictions Scheme in Victoria now affords persons convicted of criminal offending an opportunity to distance themselves from these difficulties. The Act provides convicted persons three further opportunities to prevent or remove convictions from their criminal records, as well as clarity around when, and for what purposes, spent convictions will be disclosed. The Spent Convictions Scheme and its legislation has been strongly advocated for and long awaited by the legal profession and social services. By creating alternative avenues for avoiding criminal records on certain findings of guilt, the Act offers accused persons a greater chance at rehabilitation and moving forward with their lives following convictions for criminal offending.
Footnotes
1 https://www.criminal-lawyers.com.au/sentencing/spent-convictions-10-frequently-asked-questions,
https://www.criminal-lawyers.com.au/practice-and-procedure/how-to-make-spent-conviction-application,
https://www.criminal-lawyers.com.au/legislation/spent-convictions-finally-here
2 s.7(1) Spent Convictions
3 s.7(2) Spend Convictions Act
4 s.7(2) Spend Convictions Act
5 s.9(1) Spent Convictions Act
6 s.10(1) Spend Convictions Act
7 s.10(2) Spend Convictions Act